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LORD HOPE OF CRAIGHEAD

BARONESS HALE OF RICHMOND

LORD CARSWELL

LORD BROWN OF EATON-UNDER-HEYWOOD

LORD MANCE

28 APRIL 2009

Judgment

Lord Hope of Craighead

(delivered the judgment of the Board)

By Letters Patent dated 26 August 1969 a society
of honour was established by Her Majesty the Queen in Trinidad and Tobago by
and with the advice of the Cabinet. Its purpose was to accord recognition to
citizens of Trinidad and Tobago and other persons who had rendered
distinguished or meritorious service or for gallantry. It was to be known as
the Order of Trinity. The highest award was to be the Trinity Cross of the
Order of Trinity. Except for the Victoria Cross and the George Cross, it was
to take precedence over all other decorations. The other awards, in
descending order of importance, were to be the Chaconia Medal, the Humming
Bird Medal and the Medal of Merit. The Letters Patent were gazetted on 6
September 1969. Thereafter a National Awards Committee for the Order was set
up as provided for by the Constitution for the Order set out in the Schedule
to the Letters Patent, nominations were received and awards began to be
made.

The Cabinet's decision to advise Her Majesty
that the Order should be established was taken on the advice of a Committee
that was set up in 1963 to make recommendations on national awards. It
collected data on national awards from the United Kingdom, from emergent
countries of the Commonwealth and from the United States of America. The
nation of Trinidad and Tobago is a multi-cultural and multi-racial society.
So the Committee also sought the views of, and held discussions with,
various religious and other organisations. It was on its recommendation,
after having taken all these steps, that the name of the Order and of its
highest award was chosen. But questions soon began to be raised about the
propriety of the Trinity Cross as the nation's highest award. It was
perceived by Hindus and Muslims living in Trinidad and Tobago as an overtly
Christian symbol both in name and in substance.

In February 1997 the National Awards Committee
was asked to examine the national awards system after public consultation.
Its Chairman was Michael de la Bastide, then Chief Justice of Trinidad and
Tobago. It acknowledged that the highest award had attracted negative
criticism, especially as the word "Cross" was perceived by many to
be a Christian symbol. It noted that the word "Trinity" too might
be regarded as a Christian reference, although that objection if taken to
its logical conclusion would mean that the country's name would also have to
be changed. A majority of the Committee favoured a change of name to the
Order of Trinidad and Tobago. No immediate action was taken on the
publication of its report.

On 16 November 2004 the appellants applied by
way of a constitutional motion in the High Court for various declarations to
the effect that the Trinity Cross of the Order of Trinity discriminated and
continued to discriminate against them and others who are not Christians,
contrary to sections 4(b), (d) and (h) of the Constitution of the Republic
of Trinidad and Tobago. On 26 May 2006 the trial judge, Jamadar J, held
that, but for the savings clause for an existing law in section 6(1) of the
Constitution, the appellants were entitled to a finding that their
constitutionally guaranteed rights to non-discrimination on the basis of
religion and to equality and equal treatment by law and administrative
action had been and continued to be breached by the creation and
continuation of the award of the Trinity Cross. As he explained at p 76 of
his judgment, he located the infringement of heads (b), (d) and (h) of
section 4 through the conjoint effect of those provisions. But he declined
to make the declarations that the appellants had asked for. This was because
in his opinion the Letters Patent establishing the Constitution of the Order
of Trinity and the Trinity Cross must be deemed to be existing law, so they
could not be invalidated on the ground of their inconsistency with the
rights and freedoms declared in section 4. He dismissed the action and held
that each party must bear its own costs. On 20 December 2007 the Court of
Appeal (Hamel-Smith CJ (ag), Warner and Archie JJA) dismissed, with costs,
the appellants' appeal against the decision of the trial judge. It is
against that decision that the appellants now appeal, with leave of the
Court of Appeal, to their Lordships' Board.

THE ISSUE BEFORE THE BOARD

Before the Court of Appeal the State did not
challenge the trial judge's findings that the award of the Trinity Cross
infringed sections 4 (b), (d) and (h) of the Constitution. On the contrary,
as Hamel-Smith CJ (ag) noted at the outset of his judgment, it has taken
steps to have the award replaced. A Committee was appointed to review all
aspects of the award of the Trinity Cross. On 17 April 2008, having
considered a follow-up report of the Committee, the Cabinet agreed that the
name of the highest national award should be The Order of the Republic of
Trinidad and Tobago, that the name of the Society to replace the Order of
the Trinity should be The Distinguished Society of Trinidad and Tobago, that
the highest national award should be re-designed so as to replace the Cross
with a Medal and that the Letters Patent should be amended to give effect to
those decisions. The question whether the award of the Trinity Cross was
discriminatory in the respects found by the trial judge is therefore no
longer in issue.

The issue which their Lordships have been asked
to consider is whether the Letters Patent which established the Order of
Trinity were part of the existing law of the Republic of Trinity and Tobago
within the meaning of section 6(1)(a) of the Constitution of 1976. The
appellants maintain that they have an interest to argue this point
notwithstanding the decisions that have now been taken to replace the
Trinity Cross. The respondent has not sought to argue the contrary, and
their Lordships consider that he was right not to do so. It is clear that,
but for his finding that the Letters Patent were part of the existing law,
the trial judge would not have dismissed the action but would have granted
at least some of the declarations the appellants sought. Moreover, while the
decisions that have now been taken have resolved the issue for the future,
they do not alter the fact that, for as long as it continued to be the
nation's highest award, the Trinity Cross had been since its creation, for
the reasons explained by the trial judge, discriminatory. The appellants are
entitled to a declaration to that effect, if this is not precluded by the
existing law clause.

THE EXISTING LAW PROVISIONS

Section 6(1)(a) of the Constitution of 1976
provides that nothing in sections 4 and 5, which enshrine fundamental human
rights and freedoms and provide for their protection, shall invalidate
"an existing law". "Existing law" is defined by section
6(3) of the 1976 Constitution as meaning a law that had effect as part of
the law of Trinidad and Tobago immediately before the commencement of the
Constitution. "Law" is defined in section 3(1), which states that
it "includes any enactment, and any Act or statutory instrument of the
United Kingdom that before the commencement of this Constitution had effect
as part of the law of Trinidad and Tobago, having the force of law."

The Constitution of the Republic of Trinidad and
Tobago Act 1976 ("the 1976 Act") contains a number of transitional
and savings provisions. Section 18 deals with enactments. The expression
"enactments" has a narrower meaning here than the word
"law" as defined by section 3(1) of the Constitution, as section
18 makes clear. It does not cover the same ground, as the meaning that is
given to this expression for the purposes of section 18 is a qualified one.
It states:

All enactments passed or made by any Parliament or person or
authority under or by virtue of the former Constitution and not before
the appointed day declared by a competent Court to be void by reason of
any inconsistency with any provision of the former Constitution,
including in particular sections 1 and 2 thereof, and that are not
repealed, lapsed., spent or that had not otherwise had their effect,
shall be deemed to have been validly passed or made and to have had full
force and effect as part of the law of Trinidad and Tobago immediately
before the appointed day, even if any such enactments were inconsistent
with any provision of the former Constitution including in particular
sections 1 and 2 thereof.

The expression "the former
Constitution" refers to the Trinidad and Tobago Constitution set out in
the Second Schedule to the Trinidad and Tobago (Constitution) Order in
Council 1962 which was replaced by the 1976 Constitution when Trinidad and
Tobago became a Republic on 1 August 1976. Sections 1 and 2 of the 1962
Constitution were the predecessors of what are now sections 4 and 5 of the
Constitution of 1976. Section 22 provided for the establishment of
Parliament, and section 36 conferred on it the power to make laws. Existing
laws were preserved for the 1962 Constitution by section 4 of the Trinidad
and Tobago (Constitution) Order in Council 1962. But the power to make laws
for the colony that was vested in the Crown prior to the coming into force
of the Constitution of 1962 was not preserved by it.

THE APPROACH OF THE COURTS BELOW

The trial judge held that the Letters Patent
establishing the Order of Trinity were made by Her Majesty under and by
virtue of section 56(1) of the 1962 Constitution, which vested the executive
authority of Trinidad and Tobago in Her Majesty, and that this included the
exercise of the Royal Prerogative. But he rejected the appellants' argument
that this was to be seen simply as an administrative or executive act beyond
the reach of the existing law clause. In his opinion it was a legislative
act which had the force of law. He said, at p 79 of his judgment, that it
was a legitimate exercise of executive power, which included the power to
create prerogative legislation with the force of law for the creation of
honours.

The judge found support for this view in the
official publication in the Laws of Trinidad and Tobago (LRO 1/2006) of the
Letters Patent and the annotations accompanying it in the index of
subsidiary legislation annexed to the Constitution of the Republic of
Trinidad and Tobago Act, ch 1:01. He also had regard to the form, language
and content of the Letters Patent themselves, which in his opinion suggested
an intention to legislate. The annotations that accompany the publication of
the Letters Patent in the annex state that they were originally issued by
command of Her Majesty, had been modified in accordance with section 5 of
the 1976 Act so as to be brought into accord with the Act and the
Constitution and were deemed to be issued under section 6, which conferred
power on the President of the Republic to do all things necessary for the
exercise under any existing law of any prerogative or privilege vested in
Her Majesty. Following Matthew v State of Trinidad and Tobago [2005]
1 AC 433, in which it was held that whether or not the law decreeing the
mandatory death penalty was an infringement of the right to life or a cruel
and unusual punishment it could not be invalidated for inconsistency with
sections 4 and 5 because it was an existing law, the judge held that he had
no alternative but to apply section 6(1)(a) of the Constitution whatever his
view might be about the legitimate or ethical underpinning of the continued
existence of the Trinity Cross as the nation's highest honorary award.

It should be noted in passing that the
statement in the annotations to the publication of the Letters Patent that
they had been modified in accordance with section 5 of the 1976 Act which
were mentioned by the trial judge may not be accurate. The Existing Laws
Modification Order 1976, which was made by the President under section 5(2)
of the 1976 Act and published in the Gazette on 2 September 1976, makes no
reference to the Order of Trinity. The Letters Patent which established the
Order appear to have been added to the Modification Order by the Law
Revision Committee at a later date. It is not the function of the Law
Revision Committee to alter the substance of the law: Law Revision Act,
section 17(1). But, as their Lordships will show later, nothing turns on
these points.

Delivering the judgment of the Court of
Appeal, Hamel-Smith CJ (ag) said that he agreed with the appellants that the
conferment of honours was an executive act. But it seemed to him that this
argument appeared to disregard the source of the power to confer them, which
lay within the Sovereign's prerogative powers and had the force of law as it
was a power that was legitimately exercisable by the Sovereign. Although
there was no provision to enforce the conferment of honours, the reality was
that the Letters Patent conferred a power on the President to do something
that he would not otherwise have been able to do on his own. He rejected the
argument that nothing that the executive did could have legislative effect.
In his view, the prerogative was an ancient form of law making which could
fall within the exception of section 61 (1) which permits Parliament to make
laws otherwise than by a Bill. His conclusion was that, while the power to
confer honours was an executive one, it had the force of law which allowed
it to qualify as "existing law" under the Constitution.

The critical question in both courts was seen
to be whether the issuing of the Letters Patent was simply an executive or
administrative act or was a means of making law in the exercise of the Royal
Prerogative. It was assumed that, once it had been decided that this was a
means of making law, there was no further room for argument. The honours
system which the Letters Patent created must be taken to have been existing
law when Trinidad and Tobago became a republic in 1976. The effect of the
1976 Constitution was plain. If existing laws are found to be inconsistent
with the rights and freedoms that were declared in section 4, it will be for
Parliament to provide the remedy: Matthew v State of Trinidad and Tobago [2005]
1 AC 433; see also Watson v The Queen (Attorney General for Jamaica
intervening) [2005]
1 AC 472, paras 52-54. It was not suggested in either court that there
might be a reason for examining the situation in 1969, which was the time
when the Letters Patent were issued. The question which they did not address
was whether the institution of the Trinity Cross as the nation's highest
honour was compatible with the guarantees of equality, equal treatment and
freedom of conscience and religious belief that were set out in the
Constitution of 1962.

THE COMPATIBILITY ISSUE

The same guarantees of equality, equal
treatment and freedom of conscience and religious belief as those set out in
sections 4(b), (d) and (h) of the 1976 Constitution were recognised and
declared by section 1 of the Constitution of 1962. The opening words of
section 2 of the 1962 Constitution, too, are to the same effect as section
5(1) of the 1976 Constitution. They provide:

Subject to the provisions of sections 3, 4 and 5 of this
Constitution, no law shall abrogate, abridge or infringe or authorise
the abrogation, abridgement or infringement of any of the rights and
freedoms hereinbefore recognised and declared ....

Section 3(1) of the 1962 Constitution provided
that sections 1 and 2 were not to apply in relation to any law that was in
force in Trinidad and Tobago at its commencement. Section 4 made provision
for Acts passed during a period of emergency, and section 5 enabled
Parliament to declare that an Act was to have effect notwithstanding
sections 1 and 2, provided the final vote on the Bill in each House was
supported by not less than four-fifths of its members. These exceptions do
not apply to this case. The Letters Patent were not issued until 1969, so
they did not have the protection of the existing law provision in section
3(1). Sections 4 and 5 plainly do not apply either.

In Maharaj v Attorney-General of Trinidad
and Tobago (No 2) [1979] AC 385, 396, the Judicial Committee said
that, while section 3 eliminated any argument that anything done that was
authorised by a law in force immediately before 31 August 1962 abrogated,
abridged or infringed any of the rights or freedoms recognised or declared
in section 1, it did not legitimise for the purposes of section 1 conduct
which infringed any of the rights and freedoms there described and was not
lawful under the pre-existing law. The protection which the recognition of
those rights and freedoms afforded was against contravention of those rights
or freedoms "by the state or by some other public authority endowed by
law with coercive powers": see also Thornhill v Attorney-General of
Trinidad and Tobago [1981] AC 61, 74. On the other hand if the creation
of the Order of Trinity by the Letters Patent was an enactment made under or
by virtue of the former Constitution, as the respondent submits, the
creation of the Trinity Cross of the Order of Trinity will fall to be
treated as valid under section 18 of the 1976 Act notwithstanding any such
incompatiblity. It was not declared by a competent court to be invalid
before the date of its commencement.

THE SUBMISSIONS

For the first and second appellants, Sanatan
Dharma Maha Sabha of Trinidad and Tobago Inc and Satnarayan Maharaj who
represent the Hindu community, Sir Fenton Ramsahoye SC adhered to the
argument that was presented below. In his submission the issue of the
Letters Patent was an executive act. They were the evidence by which an
executive decree was disclosed to the nation, and no more than that. It was
not for Her Majesty to legislate for Trinidad and Tobago. When the country
attained independence in 1962 this became, under its Constitution, the
exclusive responsibility of its Parliament. Furthermore the award of honours
was always, he said, an executive act on the part of the Sovereign. Mr
Newman QC for the third and fourth appellants, the Islamic Relief Centre
Limited and Inshan Ishmael who represent the Muslim community, also
submitted that issue of the Letters Patent was an executive act, as it was
done on the advice of the Cabinet and without the involvement of the
legislature. But he presented an additional argument. He submitted that the
validity of the issuing of the Letters Patent in 1969 must be judged by
whether or not this act complied with the 1962 Constitution. On the judge's
findings, this act breached the human rights provisions in the Constitution,
and the appellants were entitled to a declaration to that effect under
section 14(1) of the Constitution of 1976.

Mr Dingemans QC for the Attorney-General
objected to the argument that the issue of the Letters Patent were invalid
from the outset being raised before the Board as the point had not been
taken below. He said that it would not be a proper exercise of the appellate
function for the Board to declare that the institution of the Trinity Cross
was discriminatory in 1969. There was no finding by the trial judge that the
provisions of the 1962 Constitution had been infringed, nor had it been
suggested in either court that such a finding should be made. The judge's
findings had been based on the situation as he saw it at the time of his
judgment. The situation might well have been different in 1969 when the
Cabinet advised Her Majesty in the light of the report it received from the
Committee. The only question was whether the system that was created by the
Letters Patent was existing law for the purposes of the savings clause in
the 1976 Constitution. For this purpose they were to be seen as part of the
common law, as the issue of Letters Patent was a form of executive
legislation made in pursuance of the Royal Prerogative.

A joint note was filed following the hearing
of the appeal in which the parties made further submissions, particularly
with reference to section 18 of the 1976 Act to which their Lordships'
attention had not been drawn during the hearing and which was not mentioned
in the courts below. For the appellants it was submitted that section 18 of
the 1976 Act did not apply to the Letters Patent as, after the creation in
1962 of an independent legislature for the colony, there was no prerogative
power left in the Crown to legislate. The creation of the Order of Trinity
was an executive act, which was permitted by section 56 of the 1962
Constitution. The respondent accepted that the granting of honours was not
the making of ordinary laws. But it was submitted that this was nevertheless
an enactment of the kind mentioned in section 18 as it was an act of
executive prerogative legislation which had always been the preserve of the
Crown. As such, the Letters Patent were validated by that section as an
existing law for the purposes of the 1976 Constitution.

SECTION 18 OF THE 1976 ACT

Their Lordships must deal first with the
respondent's argument that section 18 of the 1976 Act applies because the
use of Letters Patent to establish honours is a form of prerogative
executive legislation. The phrase "prerogative executive
legislation", which was also adopted by the trial judge, is not a term
of art. It does not have the weight of authority behind it. Nor is it among
the expressions used in the 1976 Act and the Constitutions of 1962 and 1976.
It has been adopted for the purposes of the respondent's argument as a
convenient label to distinguish this form of law-making from the power to
make ordinary laws under the general legislative power that, under the 1962
Constitution, belonged exclusively to Parliament. It combines within it the
concepts of an act of law-making and something that is done in the exercise
of the prerogative power independently of Parliament. But the very fact that
the words "executive" and "legislation" are put together
in this way indicates that it is a hybrid creature, whose precise character
requires further analysis. Attaching this label to the issue of the Letters
Patent does not solve the crucial question that has to be answered. The
question is whether their issue, however one describes it, was an
"enactment" of the kind that is contemplated by section 18 of the
1976 Act – an enactment that was made under or by virtue of the
Constitution of 1962.

The fact that the Letters Patent were issued
under the Royal Prerogative does not resolve the question whether this was
an enactment either. It is commonplace for appointments to senior positions
to be made by Her Majesty by the issue of Letters Patent. These, plainly,
are executive acts only. Section 23 of the Constitutional Reform Act 2005,
which provides that Her Majesty may by Letters Patent appoint one of the
judges of the Supreme Court of the United Kingdom to be President and one to
be Deputy President is one example. There are many others, including
appointments to the rank and dignity of Queen's Counsel. This does not
exhaust the purposes for which Letters Patent may be issued. The Prerogative
in its original form enabled the Sovereign to do all manner of acts,
including that of legislating. Although much restricted, that power survives
to the present day. In this case, however, the context requires a more
precise analysis of how the act that was performed in this case ought to be
characterised. It cannot be detached from its constitutional and colonial
background.

Sir Kenneth Roberts-Wray, formerly Legal
Adviser to the Commonwealth Relations Office and the Colonial Office,
described the nature and use of Letters Patent in the Commonwealth context
in his book Commonwealth and Colonial Law (1966). At p 143 he
discussed the various legislative and executive powers possessed by the
Sovereign derived, directly or indirectly, from the Prerogative. The use of
Letters Patent, he said, is the instrument by which offices are created and
powers relating to various matters such as the appointment and dismissal of
officers are delegated to the holders of such offices. This description of
their use suggests that, for some purposes, the use of Letters Patent may
indeed assume a legislative character. At p 144 he said that there is little
distinction of substance between Orders in Council and Letters Patent, at
any rate in the case of a ceded or conquered colony in which the Crown's
legislative power remains intact. Here too is an indication that Letters
Patent may be used for a legislative purpose. Their availability for this
purpose is consistent with the nature of the Royal Prerogative under which
they are issued. Dicey described it as nothing else but the residue of
discretionary or arbitrary authority which at any given time is legally left
in the hands of the Crown: Law of the Constitution, 10th
ed (1959), p 424.

In Principles of Australian Public Law (2003),
para 8.24, Professor David Clark, describing the prerogative powers that
still exist in Australia, says that they take two forms, one of which he
refers to as legislation:

First, several of the Governors of the States and the
Governor-General of Australia are appointed under the Royal Prerogative.
Their offices are, in most cases, created by a prerogative legislation
called the Letters Patent.

The use of Letters Patent as a form of legislation within the accepted
procedures of rule-making in a democratic society is also discussed in a
Research Note prepared by the Department of the Parliamentary Library of the
Commonwealth of Australia. After referring to Acts of Parliament and
delegated legislation, the author, Roy Jordan, states:

Outside of these well known methods of law making stands
legislation made under Letters Patent, also known as prerogative
instruments, and includes legislation setting out procedures for
granting honours and awards which are made without parliamentary
scrutiny and have practically no review procedures.

These references provide some support for the
respondent's argument. But they do not address the question whether this was
an enactment of the kind referred to in section 18. The question whether an
executive act that takes the form of the issue of Letters Patent is an
executive act pure and simple or is an act of a legislative character seldom
requires to be inquired into. Normally it is a matter of no importance at
all to analyse its precise character. This is not so where the issue of
Letters Patent must be subjected to scrutiny under the 1976 Constitution's
existing law clause. That the exercise of the prerogative is open to
scrutiny in this way is not in doubt. The question is whether a decision as
to the legitimacy of its exercise in this case is pre-empted by the validity
that section 18 of the 1976 Act accorded to existing enactments.

Section 18 applies to "enactments passed
or made by any Parliament or person or authority under or by virtue of the
former Constitution". The phrase "person or authority" is
wide enough to apply to things done by Her Majesty in the exercise of the
Prerogative. But did the 1962 Constitution authorise her to make enactments
as part of the law of Trinidad and Tobago? And, if it did, was the creation
of the Order of Trinity by the issue of Letters Patent an
"enactment" within the meaning of section 18? Was it for the
purpose of legislating under or by virtue of the Constitution that the
prerogative was exercised?

The general principle is that, if the Crown
grants to a representative legislative body to a conquered
colony without reserving to itself power to legislate, the power to
legislate under the prerogative is no longer exercisable. In Campbell v
Hall (1774) 1 Cowp 204, where the Governor General of Grenada had been
authorised by Letters Patent to establish a legislature, it was held that
the King had precluded himself from the exercise of legislative authority
over the island. In Re the Lord Bishop of Natal (1865) 3 Moo PC 115
it was held that, after the creation of an independent legislature in the
Cape of Good Hope and Natal, there was no prerogative power to establish
ecclesiastical authorities with coercive authority whose status and powers
the colony could be required to recognise. This was not something that could
be done without an Act of Parliament. In Sammut v Strickland [1938]
AC 678, 704 the Board said that the Crown was not deprived in these
circumstances of the right to legislate irrevocably. But it confirmed that,
as a general rule, such a grant without the reservation of a power of
concurrent legislation precludes the exercise of the prerogative for this
purpose while the legislative institutions continue to exist.

Sir Kenneth Roberts-Wray, Commonwealth and
Colonial Law, pp158-159, offered further guidance on this point. He drew
attention to the difference between what he described as the constituent
power – the power to amend the constitution – and the ordinary
legislative power to make laws for the peace, order and good government of
the colony. He said that it did not follow from the grant of legislative
authority to the local legislature that the Sovereign could not amend the
constitution, or even revoke it, so long as the grant of legislative
authority was preserved. In his view, the power to amend the constitution,
including provisions relating to the office of Governor, belongs to the
Crown, whether expressly reserved or not. But at p 162, having considered Re
the Lord Bishop of Natal (1865) 3 Moo PC 115 and Sammut v Strickland [1938]
AC 678, he said that there was a strong case for maintaining that, unless
there is an express reservation to the contrary, the Crown does not possess
a concurrent power to make ordinary laws so long as legislative institutions
continue in the colony.

The respondent accepts that the effect of the
1962 Constitution was that the Crown lost the power to make ordinary laws
for Trinidad and Tobago. In other words, to adopt the language of section 18
of the 1976 Act, Her Majesty was not able to make laws of that kind under or
by virtue of the former Constitution. If the issue of the Letters Patent
could be said to have been an enactment of the kind that was within the
power that had been given exclusively to Parliament, it must follow that it
was not authorised by the Constitution and that section 18 of the 1976 Act
could not give it validity. But, says Mr Dingemans, the granting of honours
is not the making of ordinary laws. He does not suggest that it is an
exercise of the constituent legislative power that Roberts-Wray identified.
That would not have assisted his argument. This is a power that belongs to
the Crown. If exercised, it is exercised by the Sovereign on her own
authority, not under or by virtue of the constitution that is affected by
it. On Roberts-Wray's analysis of the powers of law-making that the common
law recognises, therefore, the creation of the Order was neither one thing
nor the other. It was not an act of ordinary law-making, because the power
to do that belonged exclusively to Parliament. And it was not an exercise of
the constituent legislative power either. That does not exhaust the
argument, however. The respondent now submits in his contribution to the
joint note that the validity of what was done as an act of prerogative
executive legislation depends on the true construction of section 57 of the
1962 Constitution.

Section 57(1) of the 1962 Constitution was in
these terms:

There shall be a Cabinet for Trinidad and Tobago which shall have
the general direction and control of the government of Trinidad and
Tobago and shall be collectively responsible therefor to
Parliament.

It was by and with the advice of the Cabinet that the Order of Trinity
was established by Her Majesty. Constitutional validity was given in this
way to its creation by the executive. But the authority to create the Order
lay not with the Cabinet but with Her Majesty in the exercise of the
prerogative. The Sovereign is the fountain of all honours in all territories
of which she is Queen: Chitty, Treatise on the Law of the Prerogatives of
the Crown (1820), pp 107-108. It was under and by virtue of the
prerogative that this was done, by and with the advice of the executive.
This is something that, as Roy Jordan says in his Research Note, is done
without parliamentary scrutiny. In other words, the additional step of
parliamentary scrutiny was not required for its validity.

A striking feature of this arrangement,
indeed, is that the Cabinet did not seek the authority of the legislature.
In Re the Lord Bishop of Natal (1865) 3 Moo PC 115, 148-150, the Lord
Chancellor referred to examples of cases where the appointments of bishops
by Letters Patent in various colonies were confirmed by Acts passed by the
legislature. The fact that the Cabinet did not think that this was necessary
for the establishment of the Order is not, of course, conclusive. But it is
an indication that the act which was being performed was not something which
had the character of what would ordinarily be called an enactment. This
understanding of its nature can be supported by an examination of the
Constitution for the Order in the Schedule to the Letters Patent. It was, of
course, within the powers of Her Majesty to lay down the rules according to
which the Order which she was creating was to operate, and it was desirable
that she should do so for the guidance of the Governor-General. In that very
restricted and unusual sense it was a kind of law-making. But there is
nothing here to indicate that the award of any of the honours that were
being created was to carry with it any kind of status or coercive authority,
such as that given to the bishops referred to in the Natal case, that
required the force of legislation to support it.

Taking all these considerations into account,
their Lordships are of the opinion that, while the issue of the Letters
Patent may perhaps be described as an act of law-making because it was
designed to set up a system for the Order, it was not an enactment of the
kind described in section 18 of the 1976 Act. It was not something that was
done under or by virtue of the Constitution. Authority to create the order
lay with Her Majesty in the exercise of the prerogative. That being so, the
Order's creation is not exempt from scrutiny as to whether it was
incompatible with the equality provisions in the Constitution of 1962 before
it can be treated as an existing law as defined by section 6(3) of the 1976
Constitution. For this purpose the word "law" has the wide meaning
given to it by section 3(1). It "includes", as the definition puts
it, "any enactment, and any Act or statutory instrument". It also
includes anything else that has the force of law, of which the common law is
the most obvious example.

THE 1962 CONSTITUTION

Their Lordships consider that it is open to
the Board to examine the question whether, assuming that it was
"law" within the meaning of section 3(1) of the Constitution of
1976, the issue of the Letters Patent was incompatible with the equality
provisions in the 1962 Constitution. They appreciate, of course, that there
are limits to the extent to which it is open to a party to rely on arguments
that were not deployed in the lower courts. The overriding consideration is
that of fairness. In this case however the facts were explored by the trial
judge in great detail in his long and careful judgment. The history of the
development of the colony since its "discovery" in 1498, and its
need for labour for the plantations when slavery was abolished, is fully set
out. He records the arrival of the first East Indian ship, The Fatel
Razack, in May 1845 and the growth of the number of Indian immigrants
that followed that event. By 1871 East Indians made up 25 per cent of the
population. By 1970 they made up 40 per cent, the majority of whom where
either Hindu or Muslim. He also traces the slow progress that was made
towards recognition that Trinidad and Tobago had become a multi-cultural and
multi-religious society, not an exclusively Christian one.

Furthermore, the judge's conclusion that,
given the experiences and religious beliefs of Hindus and Muslims, the
Trinity Cross amounted to indirect discrimination against them was not
confined to the situation at the date of his judgment. He states repeatedly
that this was so from the date of its creation. At p 76 of the judgment he
finds that its creation came at a time after Independence when Trinidad and
Tobago was already an established multi-religious society with a written
Constitution in place (the 1962 Constitution) guaranteeing the same
fundamental rights and freedoms as those under consideration through the
perspective of the Constitution of 1976 under which the declarations were
being sought. Had it not been for the saving of existing laws, he would have
given serious consideration to the mandate to grant relief under section
14(2) of the 1976 Constitution to enforce, secure and protect the
appellants' rights and freedoms which, as he put it, "have been
abridged by the creation and continued existence of the award of the Trinity
Cross."

The judge was not asked to consider whether
the issue of the Letters Patent infringed the appellants' rights and
freedoms under the 1962 Constitution. If the appellants' argument that this
was simply an executive act and not law at all was sound an examination of
that question would, of course, have been unnecessary. What they failed to
do was to appreciate that, if they were wrong about this, and it was
"law" within the meaning of section 3(1) of the Constitution of
1976, the question as to the validity of this act under the 1962
Constitution was still open to argument unless it must be taken to have been
validated by section 18 of the 1976 Act. The existing law clause in the 1976
Constitution could not save a law, if that was what this was, which was
invalid under the Constitution of 1962. This is not, however, something that
their Lordships can disregard as they contemplate the situation that the
judge's findings of fact have revealed.

By section 2 of that Constitution it was
provided that "no law" shall abrogate, abridge or infringe or
authorise the abrogation, abridgment or infringement of any of the rights or
freedoms recognised and declared in section 1. The effect of that provision
is that a law which was at variance with the 1962 Constitution was incapable
of being saved as an existing law under the Constitution of 1976 unless it
was contained in an enactment within the meaning of section 18 of the 1976
Act. "Existing law" is defined in section 6(3) of the 1976
Constitution as "a law that had effect as part of the law of Trinidad
and Tobago immediately before the commencement of this Constitution."
That definition cannot extend to a law within the meaning of section 3(1)
which post-dated the commencement of the 1962 Constitution, was at variance
with it at the time when it was made and is not validated by section 18 of
the 1976 Act.

The days are long past when a King could
declare, as King James VI of Scotland did in 1598 in his pamphlet entitled The
Trew Law of Free Monarchies or The Reciprok and mutual duetie betwixt
a free King and his natural Subjects, "The King is above the law,
as both the author and giver of strength thereto": King James VI and
I, Political Writings, ed by JP Somerville (1994), p 159. In 1603 King
James had also become King James I of England, and he carried with him his
belief in an absolute monarchy. But in 1611 it was resolved by the two Chief
Justices, upon conference with the Lords of the Privy Council, that the King
had no prerogative but that which the law of the land allowed him: Proclamations'
Case (1611)
12 Co Rep 74, 75. It is now well established that the courts have
jurisdiction under the common law to inquire into the existence or extent of
any alleged prerogative: Council of Civil Service Unions v Minister for
the Civil Service [1985]
AC 374, 398E; Halsbury's Laws of England (4th
ed, reissue), vol 8(2), para 368. In R (Bancoult) v Secretary of State
for Foreign and Commonwealth Affairs (No 2) [2008]
3 WLR 955, para 35, Lord Hoffmann said, with the agreement of all the
other members of the Appellate Committee, that he could see no reason why
prerogative legislation should not be subject to judicial review on ordinary
principles of legality, rationality and procedural impropriety in the same
way as any other executive action.

Mr Dingemans said that section 56(1) of the
1962 Constitution left it open to the Queen, within very narrow limits, to
legislate by means of the Royal Prerogative. Their Lordships do not accept
that the word "legislate" is a correct description of what this
was. The Letters Patent do not have the general coercive force which is
characteristic of an enactment. On the other hand, the meaning that section
3(1) of the 1976 Constitution gives to the word "law" is, as has
already been observed, a wide one. It does not attempt a precise definition,
so the word is left to embrace anything that is within the ordinary meaning
of "law". Professor H L A Hart, The Concept of Law (1961),
p 3 said that the question what this word means has given rise to a
prolonged and somewhat sterile controversy. But in its simplest form it may
be said to consist of a series of rules which forbid or enjoin certain types
of behaviour under penalty, rules requiring people to compensate those whom
they injure in various ways, and rules which specify what must be done to
make wills, contracts or other arrangements which confer rights and create
obligations. These rules exist in a legal system which has courts to
determine what the rules are and give effect to them, and a legislature
which enacts laws to create new rules and abolish old ones. That Her Majesty
had power to create the Order of Trinity in the exercise of the prerogative
is beyond question. As for whether this was "law", the Letters
Patent did not just create the Order. They laid down rules which were to
have continuing effect for its administration. This suggests that this was
something more than an executive decision. The rules by which a private club
or society regulates itself are not "law" in the usual sense of
that expression. But there was a public aspect to the creation of the Order
which indicates that rules of that kind do not provide a precise analogy.

Even if this was law making, one of the limits
to any power to make law was set by the declaration in section 2(1) of the
Constitution that no law was to authorise the abrogation, abridgement or
infringement of any of the rights and freedoms declared in section 1. Full
effect must be given to that declaration, and it applies as much to the use
of the prerogative to create rules for the administration of a national
awards system as it does to an enactment by the legislature. This means that
it was not open to the Monarch, whether by the issue of Letters Patent in
the exercise of the Royal Prerogative or otherwise, to act in a manner that
was incompatible with the existence of the right to equality, the right to
equality of treatment from any public authority and the right to freedom of
conscience and religious belief. The effect of section 2(1) of the
Constitution of 1962 was that the principle that was described in Maharaj
v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385,
396 applied to the issue of Letters Patent, irrespective of the description
that is given to this act.

CONCLUSION

The findings by the trial judge were directed
to the rights and freedoms described in section 4(b), (d) and (h) of the
Constitution of 1976. But they show just as clearly that the institution of
the award of the Trinity Cross as the nation's highest honour was an
infringement of the enjoyment of the rights described in sections 1(b), (d)
and (h) of the 1962 Constitution from the date of its creation. The issue of
the Letters Patent is not exempt from scrutiny as this was not an
"enactment" within the meaning of section 18 of the 1976 Act. It
was not an enactment in the wider sense either. It is not necessary to reach
a concluded view as to whether this was an executive decision or was
"law" within the meaning of section 3(1) of the 1976 Constitution
because it was, as Hamel-Smith JA put it at p 10 of his judgment, an ancient
form of law-making under the prerogative. Either way, it was an infringement
of the rights and freedoms of members of the Hindu and Muslim communities in
Trinidad and Tobago and it was unconstitutional. For this reason,
notwithstanding the listing in the annex to the 1976 Constitution in the
Laws of Trinidad and Tobago (LRO 1/2006), it is not entitled to the
protection that section 6(1)(a) of that Constitution gives to an existing
law.

For these reasons the appellants are entitled
to a declaration that creation of the Trinity Cross of the Order of Trinity
established by the Letters Patent given on 26 August 1969 breached their
right to equality under section 4(b), their right to equality of treatment
under section 4(d) and their right to freedom of conscience and belief under
section 4(h) of the Constitution of Trinidad and Tobago 1976. Their
Lordships will allow the appeal and make a declaration to that effect.

But their Lordships cannot overlook the fact
that it was not until November 2004 when these proceedings were brought that
the appellants made any legal challenge to the constitutionality of this
award. It was not until the hearing of this appeal by the Board that it was
suggested that its constitutionality should be determined under the 1962
Constitution as at the date of its creation. The retrospective effect that
normally attaches itself to a judicial declaration of the kind sought in
this case is undesirable in these circumstances. So nothing in this judgment
should be taken to apply to any awards of this high honour that were made
under the system that the Letters Patent established before the date of the
Board's judgment. For the avoidance of doubt their Lordships will make a
declaration to that effect also.

Lord Mance

(delivered
a concurring judgment)

Although I have had some doubt about the
concept of an "enactment" under s.18 of the Constitution of the
Republic of Trinidad and Tobago Act 1976, I am on consideration content that
this appeal should succeed by the route indicated in the judgment of the
Board prepared by Lord Hope of Craighead.

In my opinion, the appeal is also able to
succeed by a shorter route, which is that the letters patent involved an
executive act, capable of being declared unconstitutional in so far as it
breached the applicants' rights under s.4 of the 1976 Constitution.

Nothing in the 1962 or 1976 Constitutions
removes from the executive, in the form of Her Majesty until 1976 and the
President thereafter, any non-legislative prerogative power which the Crown
had before 1962. The creation of the Order of Trinity falls in my view into
this category. True, the creation and conferring of honours may in some
contexts give rise to rights and duties. Some ancient United Kingdom
statutes deal with precedence and the United Kingdom Army and Air Force Acts
regulate the wearing of certain medals. Questions arising of about
precedence, descent, the right to bear a coat of arms and "other
kindred matters of honour" are technically within the jurisdiction in
England of the Court of Chivalry (held still to exist, after 200 years
desuetude, in Manchester Corporation v Manchester Palace of Varieties Ltd
[1955] 1 All ER 387) and in Scotland the Court of the Lord Lyon has a
jurisdiction over the use of arms backed by criminal sanctions.

The Board was not referred to any equivalent
legal consequences of the Order of Trinity in Trinidad and Tobago (or any
equivalent jurisdiction capable of giving effect to them there). The
establishment of such an order, with the grant of the entitlement to the
holder to "(a) have the letters 'T.C.' placed after his name on all
occasions when the use of such letters is customary; and (b) wear as a
decoration the insignia prescribed by the President for recipients of the
Trinity Cross", appears, of itself and in the absence of any apparent
statutory under-pinning, to involve no legal rights or duties. The shame of
exposure is probably as good as any other method of deterring and punishing
those who assert unjustified honours or achievements of whatever nature.

The description, in the Australian
publications to which the Board refers, of letters patent including
procedures for granting honours and awards as "legislation" does
not to carry matters far, when the same publications appear to treat all
letters patent as "an ancient form of law making", yet cite, as
authority for their issue, s.61 of the Australian Constitution, which is the
section preserving the executive power of the Crown (and parallels in
this respect s.56(1) of the 1962 Constitution and s. 74(1) of the 1976
Constitution of Trinidad and Tobago).

By way of footnote, I find it difficult to see
how the Crown could in 1969 have retained any relevant prerogative
legislative power to issue letters patent. Once the Crown exercises its
prerogative power to grant a constitution to one of its territories, then,
unless the constitution becomes for some reasons inoperable, the Crown no
longer has the prerogative power to legislate which it had previously in
respect of such territory: Campbell v Hall (1774) 1 Cowp. 204.
Depending on the terms of the grant, it may retain the
"constituent" power to replace or amend the constitution, but that
is a different and presently immaterial matter.

In the case of Trinidad and Tobago, the
Constitution introduced in 1962 by the Trinidad and Tobago (Constitution)
Act 1962 was in the conventional "Westminster" style, with
detailed provisions establishing a separation of the powers of Parliament
(Chap. V), the Executive (Chap. V) and the Judicature (Chap. VI). Under
Chap. V the executive authority of the territory was "vested in Her
Majesty", while under Chap. III the Governor-General appointed by Her
Majesty was to be Her representative in the territory.

If the letters patent involved law-making,
they cannot I think have been an exercise of the "executive
authority" vested in Her Majesty by Chap. V, s.56(1), of the 1962
Constitution. Second, where it was intended to preserve a royal prerogative
having legal consequences, that was expressly provided in the 1962
Constitution: see Chap. V, ss.70 and 71-72, providing for the continuing
prerogative powers of pardon and mercy, etc. S.69 also gave the
Governor-General power to constitute offices for the territory, and to make
and terminate appointments to them. On the face of it, the 1962 Constitution
is inconsistent with the continuation of any other prerogative power to make
anything that could be described as law.

However, I do not think that this footnote
needs pursuing. I agree that this appeal should succeed, and also that any
declaration of unconstitutionality should be prospective only in effect for
the reasons given in paragraph 41 of the Board's judgment.